Patterico's Pontifications

8/10/2012

Correspondence Between the Cordial AC Carlson (Chuck Philips’s Lawyer) and My Lawyer Ron Coleman

Filed under: — Patterico @ 7:46 am

Carlson:

Dear Sir:

Please be aware that your reproduction of the handwritten or typed letters of Chuck Philips to individuals violates his copyright and trademark. Violation of Mr. Philips’ copyright and trademark can head to fines in excess of 100,00 per instance.

As a courtesy, we will give you 72 hours to remove this material from your website. I have advised Mr. Philips to take legal action against you and your website should you not cease and desist within this time frame.

Cordially yours,

AC Carlson

Ron Coleman:

Dear Mr. Carlson:

I represent Patrick Frey and write in response of yours of August 2nd.

Your email leaves us with some questions. Regarding your trademark claim, can you please specify the trademarks to which you are referring?

With respect to the copyright claim, you refer to statutory damages for reproduction. As you know, statutory damages are only available for registered copyrights, and the registration must have been made within 90 days of first publication. In this connection, can you please provide the copyright registrations for these materials so that this claim may also be appropriately evaluated?

Please direct all future correspondence or other transmissions concerning this matter to the undersigned only. Thank you for your courtesies.

Ronald D. Coleman
GOETZ FITZPATRICK LLP

Carlson:

Dear Mr. Coleman,

This letter is in your response to your email of Aug 3, 2012 quoted below. Please be advised that your legal theory is incorrect. As a matter of law under 17 USC § 101 et seq. all materials created into a complete written form are automatically copyrighted when they are complete. This protection of the author does not require registration with a copyright office (although registration can lead to increase in damages and other remedies).

Except as permitted under the copyright act of 1976, no part of any publication of Mr. Philips’ work may be reproduced or distributed in any form or by any means, or stored in a data base or retrieval system, without prior written permission of the publisher (Philips). According to § 504 of the statute referred to in the paragraph supra, reproduction of work without the copyright holder’s (Philips) permission is subject to actual damages and profits, statutory damages and profits and additional damages as outlined in the following italicized statute section:

“… In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110 (5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.”

Be advised that you are also mistaken in your notion that the statute of limitations is 90 days after original publication. The actual statute with regard to Internet is a matter of years. In addition, as the author (Philips) has also asked Mr. Frey to remove these documents by phone, we believe that tolling and a suspension of the time period for filing a lawsuit are appropriate. If you do not remove these letters we will proceed against Mr. Frey.

Note that are also contemplating a defamation cause of action.

Please be advised that, moreover, as a matter of ethics, your publication of these letters by the author may interfere with the prosecution of ongoing criminal cases in New York, adversely impacting these prosecutions. We certainly hope that an individual who associates himself with the DA’s office in law enforcement would be aware of the untoward consequences of his actions and show appropriate judgment. It appears, at the very least, unseemly for an individual associated with law enforcement to be involved in the dissemination of this sort of prejudicial information. In this connection, it may be of some assistance for your client to review the ongoing cases of the US v. James Rosemond of which Mr. Frey should be aware, given his stated expertise. Certainly your client would not want to interfere with this prosecution. We will assume that now that we have made you aware of these ethical issues, your client will remove these materials as a matter of prudent judgment and so further investigation and complaint will not be necessary.

I retain, as a matter of course for my own affairs, an AV-rated intellectual property lawyer and litigator with a specialty in defamation with whom I have consulted. I will fully fund a suit against Mr. Frey if URLs connected to Mr. Philips are not removed within three business days.

I had hoped that as a simple matter of law expressed in the statutes quoted above, this could be resolved amicably and swiftly. We are, however, fully prepared to proceed against your client using all remedies at our disposal. Our initial research suggests there are multiple jurisdictions in which we can bring a defamation and copyright infringement action, many of them quite favorable to plaintiffs.

Please remove the offending URLs. We look forward to and anticipate your prompt cooperation.

Cordially yours,

AC Carlson

Coleman:

Mr. Carlson,

I will not debate you, but merely advise that your reckoning with respect to my “legal theory” is, to put it gently, faulty. In fact, I did not proffer any “theories”; I merely asked for additional information with respect to your purported claims against Mr. Frey. You have declined to provide the information requested — a response that is nearly always an indication that a legal threat is baseless.

Indeed, it can be deduced from your response that the material in which copyright is being claimed was not timely registered and, by all indications, is not registered even now. Similarly, your refusal to identify the trademark claimed to have been infringed in your earlier email implicitly confirms that, as was fairly obvious, there is no trademark issue here at all. As to your new suggestion that Mr. Frey’s posting of these letters raises “ethical issues” that have some sort of legal implications, the suggestion is not well taken. The same goes for your vague threats regarding a defamation action.

Moreover, you should be under no illusion Mr. Frey will be intimidated by the threat of litigation, however meritless. Be advised that there are no practical limitations on the legal resources at Patrick Frey’s disposal to defend his interests in connection with this matter.

In sum, you have provided no legal or other ground for your demand that Mr. Frey remove these materials from the Internet, and we will so advise him.

59 Comments »

  1. BOOM! goes the dynamite. You’ve got a talented lawyer there, Pat.

    Comment by h2u (158cc1) — 8/10/2012 @ 8:05 am

  2. Did I mention that I can’t find any registration for Philips’s letters at Copyright.gov?

    Proud as he obviously is of those letters . . .

    Comment by Patterico (eafb3a) — 8/10/2012 @ 8:08 am

  3. Ron Coleman is the man.

    This was an excellent exchange with a clear conclusion. He has the correct tone and manages to stay professional in an outrageous situation.

    Comment by Dustin (73fead) — 8/10/2012 @ 8:09 am

  4. Mr. Carlson will “personally fund” a lawsuit against Mr. Frey?

    Here’s hoping. In fact, you should have your lawyer let Mr. Carlson know that you’re contemplating a declaratory judgment action just to speed things along.

    Comment by egd (85c2b0) — 8/10/2012 @ 8:13 am

  5. From the quality of the representation, I doubt Phillips can afford the $35 copyright registration fee.

    Comment by SPQR (26be8b) — 8/10/2012 @ 8:23 am

  6. “Note that [we] are also contemplating a defamation cause of action.”

    – He might have you on this one, Mr Frey. After all, you did reprint his idiocy for all to see . . . but then, so did the L.A. Times.

    Comment by Icy (84536b) — 8/10/2012 @ 8:31 am

  7. How you know he really didn’t read the letter from Coleman:

    We look forward to and anticipate your prompt cooperation.

    Yeah. Gonna wait a while longer I think. By the way, I like the part about “there are no practical limitations on the legal resources at Patrick Frey’s disposal to defend his interests in connection with this matter.”

    If Chuck Norris was a lawyer, that’s the kinda stuff he’d write. “Be also advised, I am authorized by Mr. Frey to crush your skull with my mind if neccessary.”

    Comment by ukuleledave (c59551) — 8/10/2012 @ 9:11 am

  8. I’m a bit puzzled why Patterico’s attorney has not raised a Fair Use defense. Maybe because Carlson has not yet raised a cogent argument for their removal?

    Comment by StrongDreams (c60594) — 8/10/2012 @ 10:01 am

  9. As thoughts:

    Is there a copyright in material sent by one to another, or is a recipient anywhere down the chain free to publish it?

    Is Carlson trying to avoid a state-based SLAPP suit by threatening a federal court lawsuit? Don’t think that works.

    Is the administration of justice and news re a high visibility legal proceeding a matter of public interest for a SLAPP? Think so.

    Comment by Harcourt Fenton Mudd (329cc1) — 8/10/2012 @ 10:08 am

  10. Mudd, copyright infringement is exclusive Federal court jurisdiction. State law procedure, which is what SLAPP is would not apply.

    Comment by SPQR (485b3e) — 8/10/2012 @ 10:13 am

  11. Mudd,
    the author retains copyright of anything written, even if the copyright is not registered, and even if the written material is sent or given to someone else. (Unless there is also an explicit transfer of the copyright).

    I think I have heard of at least one famous (dead) writer, whose estate will not allow the publication of the writer’s collected letters.

    In this case, my own view is that Philips has a legitimate copyright, but that the Fair Use exceptions apply making it allowable for someone else to publish them without permission, as long as the Fair Use conditions apply.

    Comment by StrongDreams (c60594) — 8/10/2012 @ 10:20 am

  12. The first sign that he was bluffing was the fact that the demand letter didn’t come from a bar card-carrying lawyer.

    Comment by Manolo (c7ccac) — 8/10/2012 @ 10:34 am

  13. I truly appreciate the wonderfully worded warning at the end of your counsel’s correspondence: “Be advised that there are no practical limitations on the legal resources at Patrick Frey’s disposal to defend his interests in connection with this matter.” I hope AC Carlson received a very large retainer.

    Comment by ACD (c9a314) — 8/10/2012 @ 10:45 am

  14. The guy is correct that registration of copyright is not required. All registration does is confirm the date you registered, which can be helpful if someone actually steals your work, but this begs the question.

    Who “owns” the copyright? When you send a letter to someone, the recipient “owns” the letter and can publish it or give it away with no regard to the original writer. The writer in this case does not own what he wrote.

    Comment by Schuyler (7921e2) — 8/10/2012 @ 10:50 am

  15. Strong Dreams:

    There’s no need to raise a fair use defense because fair use is just that – a defense. The defendant is arguing “Yes, I did violate your copyright, but the violation is excused.”

    Coleman doesn’t even need to get that far. In order to collect statutory damages you need to register your copyrighted work. No registration means no statutory damages, only actual damages.

    If he even wants actual damages he needs to first register the work as a prerequisite to filing suit.

    Until he registers his work there is no case, so no need to raise a defense at this time.

    Comment by egd (85c2b0) — 8/10/2012 @ 10:52 am

  16. I will not debate you….

    …because to do so would elevate you at my expense.

    I wish we could always dismiss trolls with such equanimity.

    Comment by Pious Agnostic (7c3d5b) — 8/10/2012 @ 10:55 am

  17. AC isn’t a California lawyer. Maybe he’s a sock puppet?

    Comment by AZ Bob (7d2a2c) — 8/10/2012 @ 11:01 am

  18. Good God, from the number of grammatical screwups / typos in his letters, you clearly have nothing to fear.

    Comment by Greg Q (327ae0) — 8/10/2012 @ 11:02 am

  19. Where’s Justin Levine when you need him? I believe registration is required for statutory damages, otherwise you have to prove actual damages.

    Comment by nk (875f57) — 8/10/2012 @ 11:06 am

  20. Sorry, egd, I type slow.

    Comment by nk (875f57) — 8/10/2012 @ 11:08 am

  21. I find no A C Carlson in the state bar search.

    Comment by Kevin M (bf8ad7) — 8/10/2012 @ 11:11 am

  22. Judge Haller: You’re a dead man.
    Vinny: I’m a dead man?
    Judge Haller: That’s right. I just faxed the clerk of New York and asked him what he knew about Jerry Gallo and do you want to know what he replied?
    Vinny: Did you just say Gallo?
    Judge Haller: Yes, I did.
    Vinny: Gallo with a G?
    Judge Haller: That’s right.
    Vinny: Jerry Gallo’s dead!
    Judge Haller: [hold up fax] I’m aware of that!
    Vinny: Well I’m not Jerry Gallo! I’m Jerry C-allo! “C-A-LLO”
    Judge Haller: Alright. Let’s get this cleared up right now.

    Comment by Kevin M (bf8ad7) — 8/10/2012 @ 11:17 am

  23. I’m a copyright attorney. Coleman is correct. It’s astonishing how much misinformation gets passed around concerning copyrights. Carlson obviously has little knowledge of copyright law, and Coleman isn’t explaining it to him. Why should he? But egd (#15) and nk (#19) have the right answer.

    Comment by Hank (6b3f08) — 8/10/2012 @ 11:57 am

  24. SPQR, California SLAPP law in federal court is a little more complicated. It’s available in federal court against state-law claims like defamation, but not against copyright or other federal claims. Also, the discovery-limiting provision doesn’t apply in federal court.

    Comment by Alex (4ff18d) — 8/10/2012 @ 12:11 pm

  25. “Be advised that there are no practical limitations on the legal resources at Patrick Frey’s disposal to defend his interests in connection with this matter.”

    Comment by ukuleledave — 8/10/2012 @ 9:11 am
    Comment by ACD — 8/10/2012 @ 10:45 am

    In other words, “Do you know what you’re getting into? I don’t think you do.”

    Would that every person unjustly joined in a SLAPP or other form of lawfare have such at their disposal.

    Comment by MD in Philly (3d3f72) — 8/10/2012 @ 12:15 pm

  26. Oh, Geez, Harry Mudd!! No one has phasered you out of existance yet???

    Now for Judge Haller (Fred Gwynn) to Herman Munster sans neck bolts.

    Ok, Lame jokes aside, can’t Pat launch a legal offensive that puts Shyster Coleman and n’er do well client Philips out of business permanently?

    Comment by PCD (1d8b6d) — 8/10/2012 @ 12:26 pm

  27. I wonder if Mr. Coleman spent more time laughing than dictating.

    Comment by htom (412a17) — 8/10/2012 @ 12:27 pm

  28. I’m not a lawyer and I DON’T play one on TV… but looks to me that Ronald Coleman just made AC Carlson his biaaatch! Be gentle on him Ron…

    Comment by cmk011 (fcaf0b) — 8/10/2012 @ 1:58 pm

  29. Alex, I dont think I oversimplified much.

    Comment by SPQR (7bf707) — 8/10/2012 @ 2:05 pm

  30. The guy is correct that registration of copyright is not required. All registration does is confirm the date you registered, which can be helpful if someone actually steals your work, but this begs the question.

    Wrong. There is one more important thing registration does, which is relevant here: if you have not registered the work within 90 days of first publication, you cannot get statutory damages. This is what Coleman writes to Carlson: As you know, statutory damages are only available for registered copyrights, and the registration must have been made within 90 days of first publication. Carlson completely misunderstands this sentence. Like Schuyler, he misses that tiny but extremely important phrase “statutory damages”.

    And because Carlson is completely unaware of this requirement, he imagines that Coleman is referring to a statute of limitations on copyright infringement, which would supposedly run for 90 days from the date of the infringing publication. He is skeptical of the existence of such a statute, as well he should be, since it doesn’t exist, and Coleman isn’t claiming it exists, though his claim that The actual statute with regard to Internet is a matter of years is a bit suspicious to me. I doubt he actually looked it up, or he’d give an exact number. This is also why he refers to tolling, which is obviously irrelevant to the 90-day registration window to which Coleman referred.

    It’s a rather amusing comedy of errors, actually.

    Who “owns” the copyright? When you send a letter to someone, the recipient “owns” the letter and can publish it or give it away with no regard to the original writer. The writer in this case does not own what he wrote.

    Sorry, this is utterly wrong. The physical letter belongs to the recipient, who may sell it, burn it, or do whatever he likes with it. But the copyright belongs to the writer, so the recipient has no right whatsoever to publish it. For that matter he can’t even put it on public display. If the author has registered the copyright within 90 days of writing the letter, he may recover statutory damages from the recipient who publishes it. Even if he has not, if he suffers actual damages and can prove them, he may recover them from the recipient. Of course in this case Philips would be hard-pressed to prove actual damages, so the point is moot.

    Comment by Milhouse (15b6fd) — 8/10/2012 @ 4:03 pm

  31. More proof that Carlson is NOT a lawyer.

    Comment by AZ Bob (1c9631) — 8/10/2012 @ 4:22 pm

  32. Milhouse, I was puzzled by the reference to the statute of limitations wondering why he would even bring it up and what has tolling got to do with anything. I didn’t catch on why, so thanks.

    Comment by SarahW (b0e533) — 8/10/2012 @ 4:37 pm

  33. Wish P. would spill the full name/ purported business location of this goof

    Comment by SarahW (b0e533) — 8/10/2012 @ 4:40 pm

  34. His whininess reminds me of that judgenjury guy that Popehat toyed with before dispatching him to outer regions.

    Comment by SarahW (b0e533) — 8/10/2012 @ 4:43 pm

  35. Also he was fun to put in the Ermahgerd translater:

    CERPERERGHT! CERDERLER YERS ERC CERLSERN

    Comment by SarahW (b0e533) — 8/10/2012 @ 4:49 pm

  36. Q: What is best in life?

    A: To crush your enemies, see them driven before you, hear the lamentations of their women, and to have no practical limitations on the legal resources at [your] disposal to defend [your] interests in connection with this matter.

    Comment by malclave (1db6c5) — 8/10/2012 @ 5:27 pm

  37. Q: What is best in life?

    A. Indoor plumbing, painless dentistry, and soft toilet paper.

    Comment by nk (875f57) — 8/10/2012 @ 5:36 pm

  38. Q: What is best in life?
    A: A good wife, a good doctor, and a good lawyer.

    Comment by htom (412a17) — 8/10/2012 @ 5:54 pm

  39. Carlson’s laughable job destroys his credibility and makes it clear that its a joke attempt with nothing behind it.

    Comment by SPQR (7bf707) — 8/10/2012 @ 6:04 pm

  40. He was an employee of the L.A. Times when he wrote that letter to Proctor, and he wrote identifying himself as an employee of the L.A. Times.

    Comment by Anita Busch (1c1971) — 8/10/2012 @ 6:49 pm

  41. I’ve recently had a epiphany about lawyers. Yes, I know I’m too old to just be having this epiphany but there you have it. Apart from corporate law which was part of my job and way different from civil or criminal law, my life has mercifully been free (until recently) from being on a first name basis with the legal system. Here is my epiphany: Sometimes lawyers say and do stupid things because they have stupid unreasonable clients, not because they are inherently bad lawyers. Sometimes the clients are cheap and won’t fund the lawyer in an adequate manner to properly do his job. Or, the client is feeling his testosterone and orders his lawyer to crush the other guy –and won’t take no for an answer– even though the attorney knows a more reasoned intellectual approach would be more appropriate. Or, the client’s view of how he’s been wronged doesn’t fit into any known law or precedent in the law library, and the lawyer has to make up some bullsheet argument.

    I’m curious if any of our resident lawyers or anybody else for that matter have experienced this, too, and have any good stories to share. Do you think Patterico’s case is bad lawyering on its own, bad client with no case, or both?

    Comment by elissa (7bf275) — 8/10/2012 @ 7:08 pm

  42. Before we get to that, I’m not convinced Carlson is an attorney in good standing anywhere. Where’s he from? Where does he practice? Is he a cordial “jailhouse lawyer”? A sock?

    A good lawyer controls his bad client.

    Comment by Sarahw (b0e533) — 8/10/2012 @ 7:27 pm

  43. ==A good lawyer controls his bad client==

    Ideally, but times are tough, SarahW. Lotsa lawyers who are not employed at the top firms or in boutique firms are just trying to survive. I think some are taking cases for the billable hours that they would have passed on before the recession. This is my opinion only. I don’t have any data on it.

    Comment by elissa (7bf275) — 8/10/2012 @ 7:38 pm

  44. A lawyer is supposed to exercise independent judgment on behalf of his client which includes independence from the judgment of the client as well. It is not quite “control”, although there have been instances when I have reached over and physically kept a client from speaking out of turn, and apologized to the court.

    It’s hard to explain. Once you take a case, or are appointed to one, you don’t abandon the client unless you are faced with commiting illegality or serious ethical breach. You fulfill your obligation of zealous representation to the best extent of your competence, energy, and imagination. You don’t have to like it — that’s the difference between professionalism and hobby.

    Comment by nk (875f57) — 8/10/2012 @ 7:59 pm

  45. Go to http://www.calbar.ca.gov and run his name:

    “Your search for ac carlson returned no results.”

    Comment by AZ Bob (1c9631) — 8/10/2012 @ 8:35 pm

  46. elissa, with the same poor facts, I could write a demand letter that at least did not make me look like I couldn’t tell the difference between trademark law and copyright law.

    Comment by SPQR (26be8b) — 8/10/2012 @ 8:44 pm

  47. I know you could, SPQR.

    Comment by elissa (7bf275) — 8/10/2012 @ 8:55 pm

  48. elissa, I didn’t mean to sound like I was bragging. I meant that the answer to your question is that there is bad lawyering going on, as well as a client with no case (probably literally as DRJ points out the problem of Philips probably not ownin the copyright of the letter).

    Comment by SPQR (26be8b) — 8/10/2012 @ 8:58 pm

  49. I didn’t take it that way at all, SPQR. I meant it as a compliment that you seem to be a very good lawyer.

    Comment by elissa (7bf275) — 8/10/2012 @ 9:03 pm

  50. Sock is what I thought when I saw the name “AC Carlson.” Arthur Carlson?

    Write back and ask the gentleman his opinion on the flying ability of turkeys.

    Comment by Ken (cfc102) — 8/11/2012 @ 12:35 pm

  51. “As God as my witness, I thought turkeys could fly.”

    Comment by AC Carlson (5f2a17) — 8/12/2012 @ 12:46 am

  52. Funniest episode of WKRP ever. (I sockpuppeted the last comment.)

    While lawyers debate the lawyering, I’ll again note that this is the poorest strategic move. Who sues over old news?

    Comment by ukuleledave (5f2a17) — 8/12/2012 @ 12:49 am

  53. Yes, Ken. http://www.archer2000.net/wkrp/wkrp5.html

    It’s a sock. A poorly knitted one.

    Comment by SarahW (b0e533) — 8/12/2012 @ 5:30 pm

  54. The turkeys are hitting the ground like sacks of wet cement.

    Comment by SarahW (b0e533) — 8/12/2012 @ 5:37 pm

  55. If things were automagically ‘copyrighted’ by virtue of an author having finished writing then why do you register copyrighted material? How does the copyright office automagically know you wrote it?

    This Carlson fellow is a complete idiot when it comes to copyright law.
    Quick, take his letters and copyright them before he does!

    Comment by RecklessProcess (b3a1f5) — 8/13/2012 @ 9:07 am

  56. If things were automagically ‘copyrighted’ by virtue of an author having finished writing

    They are. This is common knowledge.

    then why do you register copyrighted material?

    You don’t have to. But if you do, within 90 days of publication, then you can recover statutory damages from an infringer. If you don’t then it’s every bit as copyright, but you can only recover actual damages, which you have to prove.

    How does the copyright office automagically know you wrote it?

    It doesn’t. Why do you think it should have to? Did you imagine that copyright infringement suits are heard by the copyright office?!

    This Carlson fellow is a complete idiot when it comes to copyright law.

    True, but so are you.

    Quick, take his letters and copyright them before he does!

    Aaargh. “Copyright” is not a verb! It is an adjective. You cannot copyright something, any more than you can beautiful it or green it. A work is copyright from the moment it’s set down on paper or some other permanent form. Or it is not copyright, e.g. because the owner has released it to the public domain, or because the author has been dead for 70 years, etc.

    Comment by Milhouse (15b6fd) — 8/13/2012 @ 1:16 pm

  57. Milhouse is correct.

    Your work is your work by virtue of being your work.

    But Carlson is looking more and more like a hoax. And I doubt it’s a hoax from the folks at that radio station. I suspect it’s a hoax from the same jerks who seem to be behind the other ones, perhaps trying to create a false impression about Pat.

    But hey, who knows? All we really know is that this is a pretty stupid legal demand.

    Comment by Dustin (73fead) — 8/13/2012 @ 1:27 pm

  58. Comment by htom — 8/10/2012 @ 5:54 pm

    Plus, a Christian Banker; and a Jewish Accountant.

    Comment by AD-Restore the Republic/Obama Sucks! (b8ab92) — 8/13/2012 @ 1:38 pm

  59. RE: Icy, in comment 6. Ahhh, but keep in mind that no one actually reads the LAT, so publication by that, uh, periodical does not equate with dissemination, even on a micro scale.

    Comment by Texas_Chris (cd9f7b) — 8/13/2012 @ 4:04 pm

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